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Free video and brochure INCA (Inca Floats, Inc.) 1311-Y 63rd Street, Emeryville, CA 94608 510-420-1550 incafloats@aol.com For the discriminating vacationer \ \ a commitment to excellence è _ \ , f:. Kiawah Island Rentals and Sales Pam Harrington Exclusives 803-768-0273 ] -800-845-6966 ANNALS OF LAW STAR.R. CAN'T HELP IT But is the prosecutor to blame, or the law that created him? BY JEFFR.EY TOOBIN I F some local district attorney had just had a week like Kenneth Starr's, he'd probably be thinking about running for governor. Last Tues- day, the chief federal judge for the District of Columbia handed Starr, the Whitewater independent counsel, a major victory in his battle with the White House over executive privilege. The day before, Starr had obtained an indictment of Susan McDougal, a for- mer business partner of the Presi- dent's, on charges of criminal con- tempt and obstruction of justice. The previous Thursday, Starr's Washington grand jury had handed up a forty-two- page indictment of Webster Hubbell, a former Associate Attorney General and a close friend of the Clintons, ac- cusing him and three others in a com- plex scheme of income-tax evasion. And not long before that the federal court ruled that Starr could not be forced to give immunity to the central figure in his Washington investigation, Monica Lewinskjr. Does all this mean that Starr's name will be inscribed in the crime- fighters' pantheon alongside the names of prosecutors like Thomas E. Dewey, Rudolph Giuliani, and Archibald Cox? Actually, no. To judge from public- opinion polls-Starr's approval rating in a recent NBC News/Wall Street Jour- nal poll was eighteen per cent-the in- dependent counsel would be lucky to get his driver's license renewed without a fight. Vast numbers of Americans per- ceive him as a right-wing zealot, whose seemio.gly limitless pursuit of his quarry springs from political animus, prudery, and piety-an impression compounded by the man's unctuous manner. Indeed, by bringing the new cases against Mc- Dougal and Hubbell-Starr's third set of charges against her and his second against him-Starr is employing a tactic that many prosecutors would hesitate to use against the Mafia. More than once, Starr's investigation of the Lewinsky case has made it look as if his real target were the Bill of Rights rather than Bill Clinton. Is Starr out of control? Is he- as the White House and its allies sug- gest almost daily- Torquemada in wire- rim glasses? Actually, no. Starr and his staff have made more than their share of blunders over the past four years. But a faIr ac- counting of the problems of the office of the independent counsel-the ever- expanding scope, length, and cost of its work, and its insistent focus on be- havior that may not be criminal at all- suggest that these problems owe more to the nature of the law establishing the office than to any particular occupant. The Starr investigation represents a case study in the unintended consequences of reform. The independent-counsel law was passed in 1978, following a legislative process that began in response to the Saturday Night Massacre of 1973- the firing, on President Nixon's orders, of Archibald Cox, who had been ap- pointed Watergate special prosecutor by Nixon's own Attorney General. But, as with campaign-finance reform (an- other offspring of the Nixon scandals), the independent-counsel law has ended up compounding the problems it was designed to address. It has created a prosecutor who is at once too strong and too weak, and whose work is eas- ily-and to a certain extent inescap- ably-politicized. Starr's tenure and budget are unlim- ited, but this is not an unmixed blessing for him. Starr's power allows his targets to play David to his Goliath. They have an incentive to delay-after which they can complain that they are being end- lessly pursued. Starr's attempts to fight back in public are hamstrung by the rules of grand-jury secrecy, which prevent him from disclosing either his tactics or his results. Starr, of course, tends to exacerbate his own problems. With his continuing private law practice and his political al-